Deal looming on evaluations « Virginia Lawyers Weekly

Deal looming on evaluations

By Alan Cooper
Published: March 2, 2009

A meeting between three members of the House Courts of Justice Committee and three members of the Supreme Court of Virginia appears to have defused – but hardly eliminated – animosity over the judicial performance evaluation program.

At the meeting on Tuesday, Chief Justice Leroy Rountree Hassell Sr. agreed to withdraw an order that limited dissemination of the evaluations with the understanding that legislators would keep them confidential.

Del. David B. Albo, R-Fairfax, chairman of the House courts committee, announced the agreement the next day at a meeting of his committee that was attended by most members of the Senate courts committee, although they emphasized that they were not meeting as a body.

Several legislators bristled at any suggestion that an agreement not to disseminate the reports beyond the legislature was a condition for withdrawing the order, and Del. Vivian E. Watts, D-Fairfax, suggested that the committee emphasize that the agreement to keep the questionnaires confidential was the legislature’s decision, not the court’s.

Albo said the treatment of the reports would be similar to the way legislators handle the questionnaires that judicial candidates fill out before they are interviewed by the courts committees. Legislators frequently refer to the questionnaires and even quote from them during the interviews, but they otherwise remain confidential.

Del. Terry W. Kilgore, R-Scott County, who attended the meeting with the justices along with Albo and Del. Joseph P. Johnson Jr., D-Abingdon, supported Albo. “I think we’re getting all uptight about nothing,” he said. “We’re not agreeing to do anything that we don’t already do with bar complaints and judicial questionnaires.”

The delegates met with Hassell and Justices Barbara Milano Keenan and Lawrence L. Koontz Jr. Keenan was the justice most involved with developing the program and Koontz took over recently as the liaison between the Supreme Court and the evaluation program.

In a letter to Albo Tuesday, Hassell said the order was not intended to “prohibit members of the General Assembly from asking a judge about the content of his or her evaluation. The order does not in any way impair a legislator from fulfilling his or her constitutional duties. Rather, the order merely prohibits the dissemination of the evaluations to the public or media.”

Albo said he planned to have the five judges immediately affected by the impasse appear before the House courts committee last Friday and would make their evaluations available to the other members of the committee.

It was not clear whether the Senate courts committee would join them and Senate courts chairman Henry L. Marsh III would provide the evaluations to its members.

The evaluations were delivered to the chairmen of the courts committees in sealed packets accompanied by the order prohibiting disclosure.

The legislature was scheduled to end its work Saturday, and it was expected to fill about 25 vacancies and act on the reappointment of the five judges affected by JPE reports by then.

Hassell’s letter and comments at the meeting on Wednesday suggested a failure to communicate between the Supreme Court and the legislature from the inception of the JPE program in 2002.

It was created by Virginia Code § 17.1-100, which delegates development of the program to the court as “a self-improvement mechanism for judges and a source of information for the reelection process.” It says nothing about confidentiality.

Under the program developed by the Supreme Court, judges are evaluated three times during a term, with the last evaluation occurring in the year before they come up for reappointment. The first two evaluations are considered a self-improvement tool, and the legislators get only the final report.

Albo said Hassell told the three delegates on Tuesday that then-House Courts Chairman Robert F. McDonnell had agreed that the evaluations provided to the legislators would not be distributed to the public or media.

But Sen. Kenneth W. Stolle, R-Virginia Beach, who was chairman of the Senate courts committee at the time, and House Majority Leader H. Morgan Griffith, R-Salem, also were heavily involved in development of the program and they said Wednesday that they recalled no such agreement.

“No one person rules the legislature,” Griffith said. “If they made a deal, they never discussed it with me.” The impasse illustrated that no single legislator can bind the General Assembly and that the full legislature can’t bind future legislatures, he said.

Griffith lamented “catching innocent judges in the crossfire,” but said the legislators “can’t play dead when the court exceeds its authority, and I don’t think we have” in agreeing to keep the questionnaires confidential.

Several legislators saw the need for an immediate and a long-term solution, as Del. William K. Barlow, D-Smithfield, put it. “People back home expect us to elect judges,” he said. “They could care less about a constitutional problem.”

The legislature should act on the five judges caught up in the impasse immediately and work on clarifying legislation next year, he said.

Del. Bill Janis, R-Henrico, suggested reviving his proposal, House Bill 2526, to transfer the program from the court to the contractor that is administering it now, but the suggestion appeared to get little traction with only three days left in the session. The bill passed 49-48 in the House but died in the Senate courts committee on a 9-5 vote.

Stolle and McDonnell were early proponent of the JPE program and argued when it was being considered that anonymous responses to questionnaires by those most familiar with a judge’s work would give legislators a better perspective on a judge’s performance than a brief interview before the courts committees.

Positive responses also would serve as a counterweight to complaints from a small number of disgruntled and vociferous litigants, Stolle and other proponents of the program argued.

Stolle’s frustration over the impasse with the court was evident Feb. 20 when the House and Senate courts committees met to interview the five judges for whom the evaluations have been completed in addition to candidates for about 25 judicial vacancies.
After the judges told him that they had received an e-mail on Sept. 24 from Hassell directing them not to discuss the evaluaions with anyone, including members of the General Assembly, Stolle asked the committees to submit an ultimatum to Hassell: withdraw the order limiting dissemination of the evaluations or appear before the committees.

In the letter to Albo, Hassell offered to appear before the committees with Koontz and Keenan, but Albo told him that would not be necessary in light of his agreement to withdraw the order.

Hassell’s letter also attempted to put in context the Sept. 24 e-mail to the judges. He said he had sent it after some judges had shared their first two evaluations with legislators and others had asked for permission to share them with prospective employers after retirement.

“Judges who adhered to the confidentiality policy believed that they were placed at a disadvantage because an incorrect inference might be drawn that a judge did not disclose his or her confidential evaluation because the evaluation was not favorable…,” Hassell said.

“The policies in the e-mail were designed to achieve uniformity and resolve these issues,” he wrote.

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Deal looming on evaluations

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